TMI Blog1996 (1) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... Jagannath Mandir, Sri Narsingh Mandir, Sri Lakshman Maharaj, Raja Bahadur Sir Bansilal Hospital Trust and Sri Sanskrit Sahitya Nidhi Trust in Hyderabad. Hari Prasad badruka, the 3rd petitioner's family founded Shri Venkatesh Goraksha Trust with a sum of ₹ 1,00,000/- and donated 568 acres of land in Dabirpura and Konaipalle villages. They also claimed to have purchased 58.35 acres in Hakimpet for grazing the cows. Raja of Jataprolu in Mahaboobnagar District founded Madana Gopala Swamy and other temples at Jataprolu village; Shri narsimha Swamy and Shri Ratna Lakshmi Devi temples at Singapatnam; and Shri Amareshwara Swamy temple at Kollapuram. They endowed 300 acres of seri lands for performance of Nitya Nivedhya Deeparadhana. The first petitioner is a hereditary trustee and is entitled to nominate other trustees for proper management. He is also a Mutawalli, who in terms of the deed of trust, shall deduct 1/3 of the net income as his remuneration after excluding the management and establishment expenses. It is the case of all the petitioners that they have been properly and efficiently maintaining the aforestated trusts and charitable or religious institutions without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingling out the religious institutions or endowments established and maintained by Hindus is an invidious discrimination violating Article 14. The regulation of administration and governance of the religious institutions or endowments would amount to restriction on the religious practices or freedom of religion, since establishment, maintenance and administration of the religious institutions and endowments are intertwined with the very religious faith itself. It is impermissible for an outside agency or the party like the State to determine as to which activity is essential part of religion and which part is not. It would not, therefore, be open to the State to restrict or prohibit, under the guise of its secular power, the administration of the religious or charitable institutions or endowments, country to what the followers of the religion believe to be the religious duty. The administration of religious or charitable institution and endowments as part of the religious practice, perceived and rigorously followed by Hindus cannot, therefore, be divested by legislation. The further contention in this regard is that the State cannot directly undertake to expend public money for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a religious institution or endowment is a desire to perpetuate the memory of the founder, who was inspired with religious piety or charitable disposition. The members of his family are entitled to be members of the trust, and the right to chairmanship of the board ensures that the work would be carried out as set out in the deed of endowment. Shri Krishnamani further contended that when the founder trustee or the hereditary trustee of the religious or charitable institution or endowment renders free services in an honorary capacity, the executive officer and the non- hereditary trustees, receive salary or emoluments from the endowment depleting its source and denuding its very source of income to do better or efficient service to the followers or for the religious charitable purpose. The trustee appointed by the donor's family would work with dedication which would be wanting in the officers or non-hereditary trustees, since the latter do not have any personal interest in the efficient or proper management of the institution or the endowment. Denial of that right to do service to the religious institution or endowment to the founder or the members of the family is, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, does not violate Article 14. Procedure for appointment of a non-hereditary trustee is a fair procedure for due administration and maintenance of religious or charitable institutions and endowments. Having regard to these diver contentions, the question arises: whether Sections 15, 16, 17, 29(5) and 144 of the Act are ultra vires the Constitution. They reads thus: 15. Appointment of Board of Trustees:- (1) In respect of a charitable or religious institution or endowment including in the list published under clause (a) of Section 6- (a) whose annual income exceeds rupees ten lakhs, the Government shall constitute a Board of Trustees consisting of nine persons appointed by them; (b) whose annual income does not exceed rupees ten lakhs, the Commissioner shall constitute a Board of Trustees consisting of seven persons appointed by him. (2) In respect of a charitable or religious institution or endowment included in the list published under clause (b) of Section 6, the Deputy Commissioner having jurisdiction shall constitute a Board of Trustees consisting of seven persons appointed by him. (3) In the case of any charitable or religious institution or endowment inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in which any person other than an Executive Officer is suing or being sued shall not be affected; (iv) all moneys received by the institution or endowment in such bank or treasury as may be prescribed and be entitled to sign all orders cheques against such moneys; Provided that such deposit may be made in the treasury if the rate of interest offered by it is higher than that of any bank. (v) have power in cases of emergency, to direct the execution of any work or the doing of any act which is provided for in the budget for the year or the immediate execution or doing of which is in his opinion, necessary for the preservation of properties of the institution or endowment or for the service or safety of the pilgrims resorting thereto and to direct that the expenses of executing such work or the doing such act shall be paid from the funds of the institution or endowment : Provided that the Executive Officer shall report forthwith to the trustee any action taken by him under this sub- clause and the reasons therefor. (c) The Executive Officer shall, with the prior approval of the trustee, institute any legal proceedings in the name of the institution or endowment, or def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of succession for the time being in force, as the case may be. Charitable endowment means all property given or endowed for any charitable purpose. Religious institutions or endowment, as defined in Section 2(22), means property (including movable property) and religious offerings whether in cash or kind, given or endowed for the support of a religious institution or given or endowed for the performance of any service or charity of a public nature connected herewith or of any other religious charity and includes the institution concerned and also the premises thereof. Religious institution defined in Section 2(23), means a math, temple or specific endowment and includes a Brindavan, Samadhi or any other institution established or maintained for a religious purpose. Specific endowment , defined by Section 2(25), means any property or money endowed for the performance of any specific service or charity in a charitable or religious institution or for the performance of any other charity, religious or otherwise, Under Section 6 of the Act, the Commissioner shall prepare separately and publish in the prescribed manner, a list of all religious or charitable institutions and endowm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own as scale of expenditure . Section 26 prescribes powers of trustees of charitable or religious institution over trustee of specific endowments. Section 27 validates acts of trustees or board of trustees despite defect in their performance thereof. Section 29 deals with appointment and duties of Executive officers and Section 32 with appointment of subordinate officers. Section 30 and 31 relate to appointment of Engineering staff, Architects and Shilpis. The first question is whether it is necessary that the legislature should make law uniformly applicable to all religious or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religions or their off- shoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, sex or sub-sections in the society speaking different Languages and dialects in different regions and provided secular Constitution to integrate al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegral parts of religion. The second principle is that what constitutes an essential part of religion or religious properties has to be decided by the Courts with a reference to the doctrine of particular religion and includes practices which are regarded by the community as a apart of its religion. In The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [(1954) S.C.R. 1005], known as Shirur Mutt case, this Court had held that the language of Article 25 indicates to secure to every person subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church, or monastery or in a temple or parlour meeting. At page 1023, it was held that the word religion has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. Religion is certainly a matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are to be strictly observed on a continuous basis. These are the most sacred acts which makes the man pure. 2. VYSA SMRITHI - CHAPTER IV - SLOKA 15- I am discribing the Dana Dharma as detailed by Vyasa. What one gives daily as charity and what one enjoys daily is the only wealth one has as his. The other is the wealth meant for some one else. For, some one else will be enjoying with his wealth and even his wife, when the man dies. 3. KAPILA SMRITHI - SLOKA 427 Charity shall be done by all; especially when one has the means he should do charity without fail on every occasions. Hindu Piety found expression in establishing temples, creation of endowments or specific endowments, by gifts to idols and images consecrated and installed in temples and to religious institutions of every kind. The word `charity' in a legal sense includes every gift for educational, a general public use, to be applied consistent with existing laws for the benefit of an indefinite number of persons and designed to benefit them from a religious, moral, physical or social stand-point - vide Black's Law Dictionary at page 233. Therefore, every Hindu imbued with religious or charitable dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the right which is guaranteed by Article 26(d) of the Constitution. In that case, the Court found that the exercise of the power by the Charity Commissioner or the Court to divert the trust property or funds for purposes which he or it considered expedient or proper, although the original objects of the founder can still be carried out, was an unwarranted encroachment on the freedom of religious institutions in regard to the management of their religious affairs. It would thus be clear that the right to establish a religious institution or endowment is a part of religious belief or faiths, but its administration is a secular part which would be regulated by law appropriately made by the legislature. The regulation is only in respect of the administration of the secular part of the religious institution or endowment, and not of beliefs, tenets, usages and practices, which are integral part of that religious belief or faith. It is true that Section 16 of the Act, which has been reproduced earlier, abolishes the hereditary right in trusteeship but not the right to trusteeship itself. It is obvious that Section 18 itself recognises the right to management of a religious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrimination on grounds of heredity which otherwise is violative of Article 15(1). Article 13 declares such inconsistent custom as void. The predecessor Act 1966 recognised customary right, which the legislature has power to take away such recognition and order every eligible Hindu to be considered for appointment as trustee in the manner prescribed by law. Hereditary principle being inconsistent with Article 15(1), the legislature thought it fit to abolish the same. Moreover, by reason of hereditary nature of succession to trusteeship or mutawalli etc. inherently visited with mismanagement or misappropriation of the property of the charitable or Hindu religious institutions or endowments, the object of the endowment etc. thereby getting defeated. With a view to remedy the same and to effectuate proper and efficient management and governance of charitable and Hindu religious institutions and endowments, the Act was enacted. Instead of management by a single person Chapter III introduced in Sections 15, 17, 18 and 19 as a composite scheme prescribing disqualifications and qualifications for trusteeship, procedure for appointment of trustees and appointment and constitution of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of charitable or religious institutions or endowment covered by clause (c) of Section 6, obviously based upon the factual matrix, in the interest of the institution or endowment or for any other sufficient cause after recording reasons in writing, the Assistant Commissioner is empowered by the proviso to sub-section (3) of Section 15 to appoint a single trustee to a charitable or religious institution or endowment instead of appointing and constituting a board of trustees. It could be seen that the scheme of appointment of the trustees and appointment and constitution of the board of the trustees being an integral part and having evolved policy to entrust collective responsibility of management and administration of charitable and religious institution or endowment instead of entrusting such responsibility to a single individual, Section 15 was brought on statute to effectuate the said policy. The legislative competence is not questioned. The policy involved cannot be faulted nor can it be assailed as unconstitutional when it seeks to achieve a public purpose, viz., secular management of the charitable or religious institutions or endowments to effectuate efficient and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt III of the Act, regulating the administration and governance of the religious or charitable institutions or endowment. They are not part of religious practices or customs. The State does not directly undertake their administration and expend any public money for maintenance and governance thereof. Law regulates appropriately for efficient management or administration or governance of charitable and Hindu religious institutions or endowments or specific endowments, through its officers or officers appointed under the Act. The question then is whether legislative declaration of the need for maintenance, administration and governance of all charitable and Hindu religious institutions or endowments or specific endowments and taking over the same and vesting the management in a trustee or board of trustees is valid in law. It is true, as rightly contended by Shri P.P. Rao, that the legislature acting on the material collected by Justice Challa Kondaiah Commission amended and repealed the predecessor Act 1966 and brought the Act on statute. Section 17 of the predecessor Act of 1966 had given power to a hereditary trustee to be the chairman of the board of non-hereditary trustee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, the question that emerges is: whether Sections 17 and 29(5) are valid in law. Reading down the provisions of an Act is a settled principle of interpretation so as to sustain their constitutionality, as well as for effectuation of the purpose of the statute. With the above in mind, we may examine the validity of Section 17 and 29(5). These statutory provisions are grounded on the findings of the report of Challa Kondaiah Commission, which indicated mismanagement and misutilisation of funds of charitable and Hindu religious institutions and endowments in a big way. This is, however, a general finding; and we are prepared to agree with the learned counsel for the petitioners that all the charitable and religious institutions may not be painted with the same brush. We have no doubt that there would be charitable or religious institutions in the State which are neither mismanaged nor there is misutilisation of funds. Even so, if the legislature acted on the general findings recorded by the Commissioner, due weightage has to be given to the same. Our view that the board of trustees should be headed either by the founder or a member of his family, would go a long way in seeing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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